September 9, 2010

The plaintiffs, challenged the law under the Fifth and First Amendments to the Constitution, and Judge Phillips agreed. “The Don’t Ask, Don’t Tell Act infringes the fundamental rights of United States service members in many ways,” she wrote. “ In order to justify the encroachment on these rights, Defendants faced the burden at trial of showing the Don’t Ask, Don’t Tell Act was necessary to significantly further the Government’s important interests in military readiness and unit cohesion. Defendants failed to meet that burden.”

The rule, she wrote in an 86-page opinion, does not promote military readiness — and, in fact, has a “direct and deleterious effect” on the armed services....

The decision will not change the policy right away; the judge called for the plaintiffs to submit a proposed injunction limiting the law by September 16th, and invited defendants to submit their objections to the plan a week after that. A decision would follow, and even then would likely be stayed pending appeals.

It should be interesting. After all, those in the military necessarily have reduced 1st and 5th Amdt. rights.

Nevertheless, I think that DADT has served its purpose of slowing down change until society in general, and the military in particular, could catch up. I think that the next step should probably be to allow openly gay people to serve anywhere in the military where women can serve and anywhere that intimacy is not an issue. So that would likely exclude a tank crew, infantry platoon, and maybe in a submarine. But that would open up maybe 80% of the military, and the rest of it would likely follow in the next decade or two.

But my worry here is that a political question, that is best solved relatively slowly through the political process, will be solved by judicial fiat, and we will have the problems we have to this day with abortion in another area - but this time somewhere that is important for our national security.

Democratic House and Senate candidates must be thrilled. It must be hard for them to contain their glee concerning such a blow for fairness. It couldn't have come at a better time to aid their candidacies.

Agreed - which is why I think that it is time to review and revise it (see above) - just not by the Judicial Branch.

That would require leadership by the Executive and/or Legislative Branches. The chance was there-- last year, two years ago, three years ago. Eventually the Judiciary concludes that the other branches have punted and the issue falls to them.

How can you say the executive has punted anything when there is a law it enforces commonly called "Don't Ask/Don't Tell"?

The supposedly "democratic" policy contradicts the principles of honesty and confident individual openness that are necessary for a democracy to function. Having such a bullshit law is okay for a while, but its no long-term solution, and our elected political leaders should have recognized that.

The supposedly "democratic" policy contradicts the principles of honesty and confident individual openness that are necessary for a democracy to function. Having such a bullshit law is okay for a while, but its no long-term solution, and our elected political leaders should have recognized that.

It's not even really a question. Gays have and always have had the same rights as everyone else. It has taken a while for enough people to recognize their own prejudices. But they have. All of this, including gay marriage, is inevitable.

"I think that the next step should probably be to allow openly gay people to serve anywhere in the military where women can serve and anywhere that intimacy is not an issue. So that would likely exclude a tank crew, infantry platoon, and maybe in a submarine."

Yeah, those gay tankers. It was really a problem in WW II, when they let just about anybody in. The gay tankers were so horny they would forget that the other side might fire back, and just leer and grope when they were needed in battle.

This really slowed Patton down.

And that Battle of the Bulge? Why, it was being called "The Ardennes Assault" until some gay reporters with Patton's army started to get silly.

No, dumbass. It was during WWII that the military first started trying to identify homosexuals and excluding them to begin with. Prior to that, they only discharged people on conviction of actual homosexual acts.

The military TIGHTENED its policy against homosexuals as a result of WWII, it didn't loosen it.

Learn some history instead of just spouting off what you assume to be true.

Volokh has a link to the opinion. It is particularly damning that it takes until the 82nd page, out of 86, for the judge to even notice that gee, maybe these things are different when the military is involved.

Seriously, has this judge never heard the phrase: “We are here to preserve democracy, not practice it”?

The whole thing is crap. It is a judge very arrogantly substituting his views of what is the best policy over military’s. I will also note that the district court doesn’t even address Goldman v. Weinberger, which said that the military could restrict a jew from wearing a yarmulke in the name of uniformity. I believe since then congress has voluntarily chosen to remove any anti-yarmulke rules, but that doesn’t change the validity of the constitutional analysis. Citation for Goldman: 475 U.S. 503.

Indeed, this appears to be another case of no one in the government willing to even defend the law. The judge writes, “Finally, it again must be noted that Defendants called no witnesses, put on no affirmative case, and only entered into evidence the legislative history of the Act.” Disgusting, if true. But after judge Walker’s deception on this point, and still being heavily medicated, I am reluctant to trust this new judge.

i should probably explain the "heavily" medicated line above. i had my appendix out last week, and one of the pain meds gave me hives and i have to be on benedryl 24 hours a day until it clear up. Thus i am constantly ready to fall down and sleep. Sigh.

If I was Obama, I would defend this law to the hilt. This is definitely the kind of thing that falls into the opposite-party-must-change-it category. Like welfare.

Anyway, whether you can serve in the military and be openly gay doesn't matter for dick. This is clearly a symbolic issue, and anyone who remembers 1992 must surely remember how conservatives can really get up about this. It's really not an issue the Democrats need to have in their face right now.

I've not read the 80+ page ruling, but if it does not address the UCMJ as it was previously written, all this may do is put us right back to where we were before DADT went into effect. At that time, recuiters were required to ask about homosexuality, and if a service member were found to be a homosexual, they could be prosecuted for fraudulent enlistment. If I remember correctly, DADT did not make any change to the UCMJ, but it provided a workaround to allow homosexuals who did not overtly display their orientation to serve without fear of discharge.

The serious point though is that even if allowing openly gays to serve in the military were to affect moral, unit cohesion, etc., the bulk of jobs in the military these days do not throw service men and women close enough together that this would be credible issue.

The reason that I mentioned women is that the intimacy issue is already being addressed there. We are just not ready to put men and women in the same fox holes (even if women had the strength for infantry service). After all, women can be openly female in the military - why should gays be treated any worse?

Finally, the reason that I don't think that we are fully ready to eliminate DADT is that the average young male enlistee is often fairly homophobic. This is typically because he is still coming to grips with his own sexuality. This is something that, in today's society, most will grow out of fairly quickly. But it is a dynamic that cannot be ignored or glossed over for the sake of political correctness. (I guess, what I am suggesting here is that if the military were to up the minimum enlistment age to, maybe 25, homosexuality in the military would be much less of an issue).

Precisely. DADT is not the law. DADT is a wink and a nod and a gentlemen's agreement to not enforce the law.

Actually, I think that, up until yesterday or so, it was the law. Passed by Congress and signed into law by the President. And that was why President Obama could effectively ignore his promise to do anything about it - his hands were tied because Congress had to act first.

Interesting reading. One thing of note is that the statute starts off with 15 different Congressional findings justifying the policy. I think that it will be interesting to see how well the trial court gets away with substituting its own findings for these Congressional findings.

there's an estimated 100 thousand gay men and lesbians bravely serving their country in the military at this very moment. in most cases, the people they work with are already aware of their sexual orientations and have no problem with it and there is no huge problem with 'intimacy' or inappropriate conduct. forcing everyone to put their fingers in their ears and say 'lalalala' rather than simply accepting reality is absurd..and ruining people's lives and careers over being 'exposed' is not only unjust and cruel, it leaves us without the contributions of some of our best and brightest.

DISTRICT COURTS FIND THAT ENLISTED MEN DO NOT HAVE TO OBEY OFFICERS WHEN THEY DON"T LIKE IT. COURT STATES THAT GOVERNMENT FAILED TO PROVE TO COURT"S SATISFACTION THAT DISOBEYING ORDERS IN ANY WAY THREATENS MILITARY READINESS AND UNIT COHESION.

IN SEPERATE OPINION, COURT ALSO FINDS MILITARY BOOT CAMPS STIFLING AND UNNECESSARY TO MILITARY READINESS AND UNIT COHESION. ORDERS ALL SERVICES STAFF SERGEANTS TO "TRY BEING NICE FOR A CHANGE", CATCH MORE FLIES WITH HONEY THEORY.

COURT FURTHER DEEMS WEARING OF UNIFORMS TO NO LONGER BE MANDATORY,RESTRICTIVE OF FREE EXPRESSION, AND "HEY, WHAT"S WRONG WITH A LITTLE COLOR ANYWAY". COURT AGAIN FINDS "MILITARY READINESS AND UNIT COHESION TOO IMPORTANT TO BE LEFT TO THE 'PROFESSIONAL MILITARY'".

Hey, call it what you want, but you will see a large margin of evangelical kids no longer joining the military- in fact, the military knows it has already begun. And that may be fine with many of the posters here. But consider this: when the military already has a percentage of recruits self-identifying as "evangelical Christian" that is more than 2 1/2 times the percentage in the national population, where do you think some of those future recruiting numbers will be made up? Not all evangelicals considering military service are now going to avoid signing up, but a lot - and eventually most, will stay away. There are not enough potential gay recruits and sympathizers to the cause to bring those numbers back up.

The military is aware of this, has been quietly looking for ways to address it, but feels enormous, unprecedented political pressure.

Let's take a look at this again next year, and especially in 5 years, shall we?

The United States bent over backwards yesterday to not offend Muslims because of the potential "danger to our military personnel men" that the (idiot) Rev. Terry Jones was bound to inspire with his Koran burning. Defense Secretary Gates himself called the Rev Jones.

Guess there's only one group no one seems to worry about offending regarding military matters. Let's see, who is that group . . .

Seven: This is definitely the kind of thing that falls into the opposite-party-must-change-it category. Like welfare.

Yeah, that would be ideal.

FWIW, I'm not a big fan of the court doing what congress would do, if congress had balls. I think there are politicians in both parties who rely on the courts to fix their flubs rather than do what they know is necessary.

in most cases, the people they work with are already aware of their sexual orientations and have no problem with it and there is no huge problem with 'intimacy' or inappropriate conduct.

That's funny. I have 17 relatives that are active duty (including my son and brother)or inactive less than 3 years out. 4 of them are women. And I can state fairly confidently that not one of those 17 would agree with your statement.

It is fair to take sides on this issue. Certainly I do not wish ill on those who disagree with my reticence in allowing openly gay service members. But hyperbole and "feelings" statements like the one above just undermine your cause, my friend.

Throughout my military career, and especially during basic training, I was repeatedly advised that I had no fucking rights. It is good to know that now this fucking right has been declared a constitutional right.....When I served, back in the sixties, there weren't any flamers, but there were a couple of guys with a hint of mint. I don't recall anybody having any major problems. Nonetheless, it's easier for young men to shower and sleep together if everyone assumes that sex is not an issue. Maybe the current generation is more tolerant and mature about these things, but back when I served it would have been a problem....The woman's branch of the service had a much higher percentage of obvious gays. But even among them, there didn't seem to be any problems. I have since learned from my study of porn that women like nothing better than hot lesbo sex. The straight women were thus not adverse to serving with bull dykes. There were probably a lot of lesbo orgies in the barracks back then, but they kept it on the q.t.

Jason: And just what are this judge's qualifications to determine what is in the interests of military readiness? How do they stack up against the qualifications and experiences of the service chiefs?

The government didn't provide any evidence that openly serving service members were a problem. They had a crappy case and all it took was for someone like the Log Cabin Republicans to stand up to them.

DADT is not law. It was implemented as an executive order by Clinton in 1993 to allow gays to serve.

Bruce Hayden cited 10 USC § 654

Sorry, Bruce. This has nothing to do with DADT. This law says, among other things:

(b) Policy.— A member of the armed forces shall be separated from the armed forces under regulations prescribed by the Secretary of Defense if one or more of the following findings is made and approved in accordance with procedures set forth in such regulations:

The findings are basically that the service member engaged in homosexual activity.

Note that it does not say "May be separated"

It says "shall be separated"

DADT allows the underlying law to be ignored by the military commander.

I agree that this is not a good idea. If the law exists, it needs to be enforced or changed. Having laws which are not enforced, whether military or civilian, is ALWAYS a bad practice.

"Defendants faced the burden at trial of showing the Don’t Ask, Don’t Tell Act was necessary to significantly further the Government’s important interests in military readiness and unit cohesion. Defendants failed to meet that burden."

Strange how the very same people who push this agenda also demand that the GZ Victory Mosque be built.

The Cordoba will be filled with people who stone and hang men for being gay, and who fund terrorists here and abroad seeking to further that agenda.

To paraphrase Lenin, the leftists will sell the Islamists the rope with which to hang them.

Is it too much to ask that the Justice Department do things like, say, call witnesses and actively defend the laws of these United States?

Jesus - either repeal DADT via legislation or executive order or whatever; doing this backdoor thing where you have your lawyers simply not provide an adequate defense so the judge has no choice but to rule in the way you want is fucking subversion nigh on treason.

It's not judicial activism - judge has no choice but to rule for the plaintiff when the defense offers no case - it's DoJ activism.

And just what are this judge's qualifications to determine what is in the interests of military readiness? How do they stack up against the qualifications and experiences of the service chiefs?

Bingo! My very first thoughts upon reading the article. Just how is it that a Judge who probably has never held a "real" job and comes (once again in the ranks of the elites) from a pure academic background has any valid opinion on military readiness or military anything.

Now, if you can show me that she once actually WAS in the military and did anything outside of being a government lackey paid by taxpayers and who sits in an ivory tower and makes rules for the rest of us. I might relent.

The is the reason that people hate our own government, hate our judiciary, hate the people at the DMV. They are not connected to or accountable to the people that they rule and there are no consequences to themselves for making these decisions.

I have no opinion on gays serving in the military since I've never BEEN in the military.

My opinion on 'don't ask don't tell' is shut the hell up about your sexuality and your sex life and even your personal life when you are on the JOB no matter WHERE you work. No one cares if Bruce and Joe are getting it on. No one cares about the details of your heterosexual sex life either, or even if little Susie has finally learned to go potty by herself.

Do your effing job and STFU.

and...don't mess with me until I've had at least two cups of coffee. :-D

My opinion on 'don't ask don't tell' is shut the hell up about your sexuality and your sex life and even your personal life when you are on the JOB no matter WHERE you work. No one cares if Bruce and Joe are getting it on. No one cares about the details of your heterosexual sex life either, or even if little Susie has finally learned to go potty by herself.

Boing! Bigot at ten o'clock! Warning! Possible bigot at ten o'clock!

What about our self-esteem?

Must tell people about our sex life... just tell people about our sex life...

Else, how will we feel pride?

Boing! Bigot at ten o'clock! Warning! Possible bigot at ten o'clock!

This is why we have judges. Because we've got so many bigots. Practically everybody but the lawyers and judges are damned bigots.

I'm in the military but that doesn't make me any better qualified to rule on this matter.

The judge is wrong, for sure, and I have no desire to have to deal with homosexuals in my battalion, but I find it frightening when people put the military on a pedestal like you have done.

That's how the Dreyfus Affair in France became so debilitating to that country. People were convinced that it was unpatriotic to question the judgment of the military general officers. Of course, the least bit of questioning revealed that the generals were liars and abusing their positions to protect a treasonous peer at the expense of a jewish major in the artillery. The entire nation was ripped apart right on the eve of the First World War.

We don't need that attitude, it's dangerous to our form of government and military subordination to civil law.

Homosexuals should be excluded for reasons that are perfectly comprehensible to anyone whether they were in the military or not. They may not agree, but they can certainly understand.

Bruce Hayden said: "...and women close enough together that this would be credible issue."

Bruce, I appreciate your response.

Have you served in our military? I don't ask so that I might dismiss your argument out of hand. I ask because it doesn't sound like you're very familiar with the military lifestyle.

Even in mixed gender non-combat units, intimacy is an issue. What women put up with (or draw out of) from young males from the ages of 18-24 is a significant cause of disruption. Take it from a 20 year enlisted Marine who had the displeasure of having to deal with the hazards of hormonally supercharged young adults who work together, exercise together, and live in the same barracks.

Imagine trying to get a bunch of college freshmen to focus on getting a severely important task done. Yeah.

Bottom line is, the lifestyle is far closer in the military - regardless of gender integration and unit mission - than any other profession.

"Frankly, the reason that I don't think that we are fully ready to eliminate DADT is that the average young male enlistee is often fairly homophobic."

Just curious, what are you basing that on?

"This is typically because he is still coming to grips with his own sexuality."

Sheesh, what you you basing this on?

Most young men in the service are only coming to grips with the fact that they have their own paycheck with which to go out and pursue their well-established sexuality.

Trust me.

"(I guess, what I am suggesting here is that if the military were to up the minimum enlistment age to, maybe 25, homosexuality in the military would be much less of an issue)."

I doubt it, but then if you're right, mixed gender service probably wouldn't be the problem it is either. But recruits 25 and up are much, much more difficult to recruit for a number of reasons.

@Skyler - The problem is, once civilian judges start evaluating military regulations through an individual rights prism, where does it all end? The military discriminates against a lot of people, not just out-of-the-closet gays, in the name of readiness and cohesion.

I wonder just how many military regulations Judge Phillips would find unconstitutional if she went through them one by one.

Homosexuals should be excluded for reasons that are perfectly comprehensible to anyone whether they were in the military or not. They may not agree, but they can certainly understand.

@skyler.

You make a very good point.

I have no opinion on whether gays should/should not serve. Whether they should serve openly or as now under the DADT rules. My gut feeling is that DADT is probably a good compromise.

I would like to defer to the judgement of the Military on this matter since they would be the ones who would know best how DADT really works. However, your point about the Dreyfus afair and military subordination to civil law and not a law unto itself, is well made.

The Military is NOT the same as private industry where discrimination and "right" (whether trumped up or real) can be legislated enforced...whatever. When you voluntarily join the Military, you voluntarily give up certain rights and agree to the rules of that organization. You also don't cease being a citizen either.

As I said, my opinion, military or private industry, is that people should leave their personal lives at the door when they are at work. If your personal life (gay, hetero) is interfering with your job and my business....as your employer...I'm going to show you the other side of the door and don't let the door knob hit'cha on the way out.

Frankly, I'm sick of gays and their advocates trying to shove their lifestyle in my face and try to FORCE some sort of public mea culpa type of acceptace. I don't CARE what gays or anyone else does in their personal lives (as long as it doesn't cause harm to others).....just do it in private and STFU.

As has been noted above, you sign away virtually all your Civil Rights when you enlist. You can't say whatever you want, you can't associate with whoever you want, you can't even write letters to the Editor when you want. It's a different, and more difficult, kind of life than most people want to subject themselves to. There is virtually no privacy in the enlisted ranks, whether deployed or back at base. If you're gay, you have to keep it quiet, keep it in your pants and keep doing your job. If you can't do that, go back home to your Mommy, because we have no use for you.

We had one gay soldier in my unit in Germany. Took about 6 months from the day he walked into the BC's office and announced his homosexuality 'til he went home. I knew the kid and he was definitely gay, but he was also definitely looking for a way out of the 4 remaining years of his commitment. After his declaration, he was moved to a single room in the barracks (quite a luxury) and given light duty until the processing (Psych exams, etc.) was complete.

Maguro asked, @Skyler - The problem is, once civilian judges start evaluating military regulations through an individual rights prism, where does it all end?

That's what is puzzling about this decision to me. The courts have a long tradition of giving the military a lot of leeway in curtailing civil rights and in other matters. Specifically in the not too distant past, the Supreme Court ruled that homosexuals could be excluded from the military, not even DADT.

We need not necessarily fear civil courts in matters of the military. What we need to fear is justices being appointed by marxists, and marxists in the white house.

I've not read through the thread as the subject has become a bore to this veteran, but as I can't much more of the live press conference, I'll jump in.

One thing that nobody on the anti-DADT crowd has ever really answered is...okay...they serve openly...now what? Now what, indeed, in particular with regard to enlisted barracks.

The different services have different housing setups for the E1-E4's with the Air Force (of course) usually coming out on top. However, you're still looking at communal bathrooms and showers.

There is a specific reason why men and women don't share communal showers and bathrooms. How does that specific reason, ie, sexuality, go away just because some regulation changes and all the sudden, Senior Airman Jack Schlong can now watch you while you shower, both of you knowing full well its the equivalent of me watching a woman shower?

(for the purposes of this exercise, please assume that all persons involved have six-pack abs and asses that could clench-crack a bowling ball)

let me give you a concrete example of how deferential the Sup. Ct. is to the military, ordinarily.

In Goldman, a rabbi in the air force wanted to wear his yarmulke. Air Force regulations at the time said he couldn't. The S.C. upheld the military's position.

The idea that you have a right to free speech beyond the truly anemic, or to "autonomy of self" in a military setting is wrong headed. this decision will be struck down, if anyone bothers to appeal it.

My opinion on 'don't ask don't tell' is shut the hell up about your sexuality and your sex life... when you are on the JOB no matter WHERE you work. (DBQ)

This is effectively the law in the real world business. Asking someone their sexual orientation or telling someone your sexual orientation, regardless of what it is, can be easily construed as sexual harassment.

At the first job my wife had when we were married in the mid-80s (in LA), they had a strict non-fraternization and DADT for ALL employees. It wasn't because of gays, but because there were several married couples who worked there and some got quite annoying in their interactions. (When she was there, the worse, though, were a lesbian couple who were constantly making sexual comments and being quite physical with each other at the office--they were fired.)

Well, of course, even if Senior Airman Jack Schlong is forced by DADT to keep his sexual orientation a secret, he can still watch his buddies shower.

Even so, it's not like DADT jams everybody's gaydar, and there are gays who come out to their buddies (or even their units). So servicemembers shower with people they know to be gay, or at least strongly suspect to be gay, fairly frequently.

In my own experience (I was in the Army from the beginning of 2003 to the middle of 2007), that sort of thing wasn't a big deal. We had a gay guy in our company who came out to me and several of his other buddies, but his orientation was an open secret. While some people did have a problem with him, he honestly got more shit for being an open and unapologetic liberal than for being light in the loafers.

My own experience suggests that a lot of servicemembers are against serving with homosexuals in theory, but when the rubber meets the road, they're far more tolerant than social conservatives (and even their own superiors!) give them credit for.

The Israelis first allowed open homosexuals to serve in their military seventeen years ago. They seem to have maintained a world class military despite the disruption that people claimed it would cause.

"Are gay Americans welcome as members of our American society or not?"

Apparently not. Sometimes compromise is better than feuds that aren't likely to be solved. I think we haven't given DADT enough time to achieve the change our Fabulous American friends want to see. The fact is, that most people don't care what others do IN PRIVATE, but in the military privacy is a limited commodity. The rule might be better expressed as "suppress your flamboyance" or just "stay out of my face."

Due to local sensitivities, U.S. soldiers can't even have a beer in the Muslim countries in which they serve. Anyone think that openly homosexual soldiers will be stationed in those same Muslim countries by our Islamophile CinC? Nothing more useless than a soldier who can't be deployed to the battlefield.

Youngblood wrote: " They (the Israelis) seem to have maintained a world class military despite the disruption that people claimed it would cause."

It seems to me that the Israelis, despite watching our experiences with Iranian backed paramilitary organizations, was completely unprepared for mild resistance in their last attacks in lebanon and had to run back home with their tails between their legs. World class? Not much anymore. If you want to use them as your example of how homosexuals effect a military, then you've picked a loser.

I don't believe that their failure was due to homosexuals, but I also don't believe there is another military in the world that even comes close to ours. We are peerless.

If it wasn't clear, I said that the Israeli military is world class, not that it's better than the United States military.

In a bunch of situations, the Israeli military hasn't done very well recently. The reasons for that have been largely political.

My point is that the Israeli military hasn't been crippled by the erosion of unit cohesion or any of the other detrimental effects that DADT's proponents claim will cripple our military should we repeal it. You yourself admit that their failings have nothing to do with open homosexuals in the ranks.

They've been crippled, just not due to having homosexuals. It certainly didn't do anything to improve them. I'm sure it's part of why they have declined, but having homosexuals is a symptom, not a cause.

Btw, at my blog, i have a new post showing that literally every argument in the DADT case would have applied equally to the Goldman case. Goldman lost his right to wear a yarmulke, but the gay soldiers won.

Judge Phillips was NOT being as deferential as the precedents demanded.

You can read it, here: http://allergic2bull.blogspot.com/2010/09/of-rabbis-and-gay-soldiers.html

No matter how we feel about same-sex marriage, gays in the military, etc., the exegesis for the 2nd and 3rd chapters of Genesis makes us uncomfortable. Why? Because the deed Adam and Eve did, according to the evidence in the story, was sodomy--the mystery the bishop of Hippo almost solved 1600 years ago. (He thought the sin was penile/vaginal.) For more information google The First Scandal Adam and Eve. Then click, read, and click again.